This claim was filed on December 4, 2000. Claimant alleges that the State
is liable for breach of its non-delegable duty to protect the health and safety
of the claimant. The claim contains a number of factual allegations relating to
asserted mistreatment or failure to treat certain dental and skin conditions.
The majority of the allegations relate to the time period when claimant was
incarcerated in Clinton Correctional Facility from October 1990 to March 2000.
Some of the allegations relate, however, to untimely transfer of documents from
Clinton to Eastern Correctional Facility and alleged inadequate treatment
received at the latter institution.

Claimant alleges that he has "acquired medical complications pursuant to the
‘continuous theory doctrine.'" (claim, ¶4). The earliest date
referenced in the claim is October 1990 and the latest is September 26, 2000.
On that date, it is alleged, claimant was reassigned to a certain doctor, who
falsified certain medical data and who failed to provide medical treatment or
authorize needed medication (

id. ¶8). Claimant also alleges that he "has not been medically
examined or treated by a licensed Dermatologist, after being diagnosed with the
skin disease, as of the submission date of this claim" (id. ¶9).

In addition to compensatory damages, claimant seeks injunctive relief
(directing that medical treatment begin and follow-up surgery performed) and
punitive damages. In its answer, the State set forth as its first affirmative
defense the following: "The claim is not timely served and filed in that it
accrued more than 90 days prior to December 4, 2000." By the instant motion,
counsel for defendant moves for an order dismissing so much of the claim as 1)
"accrued more than 90-days prior to December 4, 2000"; 2) seeks injunctive
relief; and 3) seeks punitive damages.

It requires little discussion to rule on the latter two issues. This Court
does not have jurisdiction to grant injunctive relief (

Ozanam Hall of Queens Nursing Home Inc. v State of New York, 241 AD2d 670
[3d Dept 1997]), and the waiver of immunity contained in Court of Claims Act
§8 does not permit punitive damages to be assessed against the State or its
political subdivisions (Sharapata v Town of Islip, 56 NY2d 332 [1982]).
The matter is not so simple and straightforward with respect to the defense of
untimeliness.

In order for defendant to successfully seek dismissal of a claim on the ground
of untimeliness, it is necessary for defendant to raise the defense "with
particularity" (Court of Claims Act §11[c]). It is not clear that
defendant's statement, quoted above, satisfies this requirement (

see, Sinacore v State of New York, 176 Misc 2d 1, 9 [Ct Cl 1998]).
Even if the defense were adequately raised, however, the instant claim alleges a
continual course of medical/dental treatment that, in fact, continued up until
the time that the claim was filed and served. CPLR 214-a provides that the time
period for commencing actions for medical, dental or podiatric malpractice is to
be calculated from the date of the "act, omission or failure complained of or
last treatment where there is continuous treatment for the same illness, injury
or condition which gave rise to the said act, omission or failure." It is well
established that the continuous treatment doctrine "may be properly applied to
situations where a prison inmate is treated (or necessary treatment omitted) by
physicians in a succession of State facilities" (Mitchell v State of New
York, Ct Cl, Jan. 4, 2001 [Claim No. 103000, Motion No. M-62613, MacLaw No.
2001-028-0506], Sise, J.).

Defendant's motion is granted with respect to those portions of the claim
seeking injunctive relief and punitive damages and otherwise denied.

June 11, 2003Albany, New
York

HON. JUDITH A. HARDJudge of the Court of Claims

The following papers were read on defendant's motion for an order of
dismissal: